About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Durban
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Durban
>>
2015
>>
[2015] ZAKZDHC 29
|
|
Deoraj and Another v Maharaj N.O. and Others (1041/2014) [2015] ZAKZDHC 29 (27 March 2015)
IN
THE KWAZULU-NATAL HIGH COURT, DURBAN
REPUBLIC
OF SOUTH AFRICA
CASE
NO: 1041/2014
In
the matter between:
RAJINDRA
PRAKASH
DEORAJ
...................................................................................
First
Plaintiff
AMIE
DEORAJ
...........................................................................................................
Second
Plaintiff
and
SIMI
MAHARAJ N.O.
…............................................................................................
First
Defendant
NICOLA
CRONJE N.O.
…......................................................................................
Second
Defendant
KERRY
WYNDHAM (WOOD) COOK
N.O.
...........................................................
Third Defendant
THE
MASTER OF THE HIGH
COURT
...................................................................
Fourth
Defendant
THE
SHERIFF OF THE HIGH COURT,
DURBAN
NORTH
......................................................................................................
Fifth
Defendant
THE
REGISTRAR OF DEEDS,
PIETERMARITZBURG
.............................................................................................
Sixth
Defendant
JUDGMENT
THATCHER
AJ:
[1]
On the 12 October 2012, Mr and Mrs Deoraj (“the plaintiffs”)
purchased an immovable property situated at 97 Belmont
Road,
Effingham Heights, KwaZulu-Natal, at a sale in execution. The
sale in execution, conducted by the fifth defendant,
the sheriff of
the High Court, Durban North (“the sheriff”), was at the
instance of Peoples Bank Limited, the judgment
creditor of one Ashika
Ramcheret. Before transfer of the property was effected, the
estate of Ms Ramcheret was sequestrated.
[2]
Sequestration of her estate brought into play
section 20(1)(c)
of the
Insolvency Act, No.24 of 1936
, which is as follows:-
“
20(1)
The effect of the sequestration of the estate of an insolvent shall
be –
(a)
…
;
(b)
…
;
(c)
as soon as any sheriff or messenger, whose
duty it is to execute any judgment given against an insolvent,
becomes aware of the sequestration
of the insolvent’s estate,
to stay that execution, unless the court otherwise directs.”
[3]
The plaintiffs launched an action against the trustees in the
insolvent estate of
Ms Ramcheret, the first, second and third
defendants (who I shall hereinafter refer to as “the
defendants”) in which
they sought an order in terms of
section
20(1)(c)
that the sheriff be directed to pass transfer of the
property pursuant to the sale in execution.
[4]
In their particulars of claim, the fact of the conclusion of the
contract is alleged, and a copy of the alleged contract is
annexed to
the particulars of clam as annexure “A”. It is
alleged that the first plaintiff has performed his
obligations in
terms of that contract by paying the agreed deposit, securing the
balance of the purchase price, and paying to the
conveyancers all
costs necessary to effect transfer and all amounts required by the
eThekwini Municipality for the issue of a rates
clearance
certificate.
[5]
The plaintiffs go on to plead as follows:
“
16.
The first and second
plaintiffs have:-
16.1
at all material times maintained possession of the property;
16.2
effected improvements to the property;
16.3
a real
lien
over the property.”
[6]
The particulars of claim further allege that in terms of
section
20(1)(c)
of the Act, the sheriff is obliged to stay execution against
the insolvent’s estate unless the court orders otherwise.
It is then alleged as follows:
“
19.
It
is to the benefit of the
concursus
creditorum
of the insolvent’s
estate that execution continues to be levied against the insolvent’s
estate and that the [sheriff]
be authorised and directed to take all
such steps as may be necessary to pass transfer of the property to
the first plaintiff pursuant
to the aforementioned sale in execution
and conditions of sale (Annexure “A” hereto).”
[7]
In June 2014, the trustees excepted to the particulars of claim on
the basis that they lacked the necessary averments to sustain
a cause
of action “and/or are vague and embarrassing” on grounds
which are then set out.
There
were four complaints which I set out below.
(a)
The first complaint, in summary, is that
the plaintiffs failed to attach to the particulars of claim the
conditions of sale upon
which they relied, the contract attached to
the particulars of claim being one between a Ms Maharaj of Almenta
Trust in her capacity
of trustee in the insolvent estate of Ms
Ashika Ramcheret and one Nkululeko Nggungqushe. The terms of
the contract pleaded
in their particulars of claim are at variance
with the contract annexed to the particulars of claim and it is
alleged that the
particulars of claim lack averments necessary to
sustain a cause of action “and/or are vague and embarrassing.”
(b)
The second complaint relates to paragraph
15 of the particulars of claim and is that the plaintiffs have not
provided any particularity
with regards to the purchase of the
property [and] nor have they attached the written contract upon which
they rely and accordingly
the particulars of claim are vague and
embarrassing. I understood from Ms
Kissoon-Singh
,
who appeared for the excipients, that the contention was that the
plaintiffs ought to have disclosed the dates when they took
the steps
relating to the payment of deposit and the securing of deposit set
out in paragraph 15, and that the allegations in paragraph
15 did not
accord with the contract annexed to the particulars of claim.
(c)
The third complaint relates to paragraph
16.2 of the particulars of claim, the complaint being that the
particulars of claim are
vague and embarrassing because the
plaintiffs do not provide particularity with regard to the alleged
improvements.
(d)
The fourth complaint relates to paragraph
19. The complaint is that the plaintiffs have not provided any
particularity with regard
to whether there are other creditors in the
insolvent estate, and if so who such creditors are and what their
claims are and why
it would be in the best interests of creditors of
the estate for the sale to proceed.
[8]
On the 20 October 2014, a notice of set down of the exception was
served upon the plaintiffs’ attorneys advising that
the hearing
was to take place on 17 March 2015.
The
first and second complaints
[9]
Upon reading the particulars of claim, it is immediately apparent
that the terms of the contract annexed to it are at variance
with the
allegations as to the terms of the contract set out in paragraph 15
of the particulars of claim. Having regard to
the identity of
the purchaser in the annexed contract, the obvious inference is that
the compiler of the particulars of claim annexed
to it the incorrect
contract.
[10]
It is thus unsurprising that exception is taken to the particulars of
claim as being vague and embarrassing on the basis that
the terms of
the contract set out in the particulars of claim do not accord with
the terms set out in the contract annexed to it.
On that basis
alone, the particulars of claim are vague and embarrassing.
[11]
On 11 March 2015, a notice of amendment was emailed to the
defendants’ attorneys replacing annexure “A” with
a
different contract. The terms of this replacement contract
accord with those set out in the particulars of claim and on
the face
of it, it would appear to be the correct contract. The time for
objecting to the proposed amendment had at the date
of the hearing of
this exception not yet expired, but on the face of it no valid
objection can be taken to the proposed amendment.
The
amendment, if it proceeds, will remedy the first complaint and part
of the second complaint.
The
balance of the second complaint
[12]
The balance of the second complaint is that there is no particularity
pleaded as to when the amounts referred to in that paragraph
were
paid or when the balance of the purchase price was secured. I
will deal with this complaint when I deal with the third
and fourth
complaints to which I now turn.
The
third and fourth complaints
[13]
Those complaints are in summary that the plaintiffs’ have not
provided particularity with regard to the alleged improvements
and
neither have they pleaded any facts in support of the
conclusion that it is to the benefit of the creditors of the
insolvent
estate that transfer of the property sold in execution be
effected.
[14]
The purpose of pleadings is to define the issues so as to enable the
other party to know what case has to be met.
Minister
of Agriculture and Land Affairs v de Klerk
2014(1)
SA 212 (SCA) at 223G-H
[15]
FH Grosskopf JA in
Trope & Others v South African Reserve Bank
[1993] ZASCA 54
;
1993 (3) SA 264
(AD) at 273 A-B stated as follows:
“
It
is trite that a party has to plead – with sufficient clarity
and particularity – the material facts upon which he
relied for
the conclusion of law that he wishes the Court to draw from those
facts. … It is not sufficient, therefore,
to plead a
conclusion of law without pleading the material facts giving rise to
it.”
[16]
The material facts must be set out in the particulars of claim.
Buchner & Ano. v Johannesburg Consolidated Investment Co. Ltd
1995(1) SA 215 (T) is illustrative of this principle. In that
case, Johannesburg Consolidated Investment Company (“JCI”)
claimed payment of a sum of money from Buchner and another. It
alleged that its (JCI’s) subsidiary companies were obliged
to
pay this sum to First National Bank in terms of a suretyship and that
Buchner and the other defendant were liable to reimburse
JCI. This
claim against Buchner and the other defendant for reimbursement was
set out in a paragraph in the simple summons which
read as follows:-
“
The
defendants are liable to reimburse the plaintiff pursuant to the
provisions of an agreement between the plaintiff and the defendants
dated 26 June 1987
”
.
[17]
The court held as follows:
“
The
necessity to plead material facts does not have its origin in [Rule
18(4)]. It is fundamental to the judicial process
that the
facts have to be established. The Court, on the established
facts, then applies the rules of law and draws conclusions
as regards
the rights and obligations of the parties and gives judgment. A
summons which propounds the plaintiff’s
own conclusions and
opinions instead of the material facts is defective. Such a
summons does not set out a cause of action.”
(page 216 H-J)
The
court went on to state as follows:-
“
This
is an expression of the [JCI’s] opinion, of its conclusions, as
to the facts of the matter and as to the legal consequences
of those
facts. The relevant facts which must be set out are not only
that a contract was concluded, but also that certain
terms were
agreed upon in that contract. The conclusion that [the
defendants] are liable can only be reached or justified
if those
terms support the conclusion set out in the summons. Those
material facts were not set out in [JCI’s] summons
and it
follows that the summons does not contain a cause of action.”
(page 217 D-G)
[18]
There is no exhaustive test to determine whether a pleading contains
“sufficient particularity” for the purpose
of sub
Rule
18(4)
but it is essentially an issue of fact: a pleading contains
sufficient particularity if it identifies and defines the issues in
such a way that it enables the opposite party to know what they are.
Nasionale Aartappel Koӧperasie
Beperk v Price Waterhouse Coopers Inc.
2001(2) SA 790 (T) at 798F-799J.
[19]
Mr
Stewart
,
who appeared for the plaintiffs, contended that the delivery of the
notice of amendment answered the first complaint and part
of the
second complaint. I agree. He argued further that the
remainder of the second complaint and the third and fourth
complaints
were without foundation as the allegations in paragraphs 15.2, 16 and
19 were not vague and embarrassing. He stated
that the
requisite
facta probanda
had been pleaded, and the defendants were not embarrassed thereby and
were able to plead thereto. He submitted that in any
event the
defendants could simply deny those paragraphs and could elicit the
facts in a request for further particulars for the
purposes of
preparation for trial. He argued that the plaintiffs had
pleaded the
facta probanda
(the facts that had to be proved) and that they did not have to plead
the
facta probantia
(the evidence that would prove those facts).
[20]
Ms
Kissoon-Singh
argued that the excipients did not know the case they had to meet.
They were, with regard to paragraph 19 of the particulars
of claim,
simply confronted with a conclusion of law and had no knowledge of
the facts upon which the plaintiffs relied for that
conclusion of
law. She contended that the situation is analogous to that in a
claim for damages in a motor vehicle collision
case arising from the
alleged negligence of the defendant. It is not sufficient
simply to allege negligence. One has
to detail the particular
grounds of negligence from which the defendant will know the case he
or she has to meet.
[21]
With regard to the balance of the complaint concerning paragraph 15,
the
facta probanda
have been pleaded in support of the contention that the first
plaintiff has complied with all his obligations in terms of the
contract. He has pleaded that he has paid the required deposit
of 10% of, and has secured the balance of the purchase price,
and has
paid to the conveyancers all the costs of transfer and all amounts
required for the issue of a rates clearance certificate
and the
sheriff’s commission. The evidence to prove those facts need
not be pleaded, and the defendants are in a position
to plead to the
allegations in paragraphs 15.1 to 15.5. They can make the
necessary enquiries in order to determine whether
the allegations set
out in those subparagraphs are correct. Thus the balance of the
complaint regarding paragraph 15 has
no merit.
[22]
I turn now to the complaint regarding the lack of particularity in
paragraph 16.2, the allegation that the plaintiffs’
have
effected improvements to the property. That the plaintiffs may
have effected improvements on the property may well be
a fact in
favour of the sale proceeding. However they have not pleaded as
much. If that is what they intended, they have
not pleaded any facts
regarding the nature of those improvements or their value, both of
which are necessary if the plaintiffs
are going to contend that it is
a factor in favour of their case, for otherwise the defendants will
not know the case they have
to meet on that aspect. Neither
have the plaintiffs set out any facts in support of the allegation
that they have a real
lien
over the property. It is not an answer to state that they must
simply plead a bare denial and request further particulars
for the
purpose of preparation for trial and thereby learn the case the
plaintiffs seek to make. The exception must accordingly
succeed
in regard to paragraph 16.2.
[23]
I turn now to paragraph 19 of the particulars of claim. That
paragraph is simply a bald statement that it is to the benefit
of the
concursus creditorum
of the insolvent estate that the sale
proceed. No facts are disclosed forming the basis of this conclusion
of law.
It is not an answer for the plaintiffs to state
that the relevant information is in the possession of the defendants
and following
the discovery process, the particulars of claim will be
amended. Neither is it an answer that the defendants are not
embarrassed
and should simply plead a bare denial and seek further
particulars. The plaintiffs alleged that they are in possession
of
the house. They know the purchase price of the
property at which it was knocked down to them at the sale in
execution.
Presumably one of the facts which would render it to
the benefit of the insolvent estate for the sale to proceed is if the
price
for which the property was purchased at the sale in execution
is greater than or at least equivalent to the market price of the
property. There is no reason why, if the plaintiffs are
going to rely upon this as being a fact in favour of the sale
proceeding, the plaintiffs should not plead what the market value of
the property is. Ms
Kissoon-Singh
’s submission
that the situation is analogous to claim for damages in a motor
vehicle collision case arising from the negligence
of the defendant
is correct. One has to detail the particular grounds of
negligence from which the defendant will know the
case he or she has
to meet.
See:
Honikman v Alexandra Palace Hotels (Pty)
Ltd
1962(2) SA 404 (C)
[24]
It is incumbent upon the plaintiffs to set out the facts in support
of the conclusion of law alleged in paragraph 19. As
paragraph
19 now stands, the defendants do not know the case they have to meet.
I am accordingly of the view that the defendants’
exception to
paragraph 19 of the particulars of claim is good.
[25]
At the commencement of the hearing, Ms
Kissoon-Singh
argued that in the light of the notice of amendment, whatever the
outcome of the remaining exceptions, the defendants were entitled
to
the costs of the opposed application. Mr
Stewart
opposed the grant of such an order on the basis that the remaining
exceptions fell to be dismissed. My finding is that the
remaining exceptions, namely those to paragraph 16.2 and paragraph 19
are good. I see no reason to depart from the usual order
that costs
follow the result and accordingly it is not necessary to deal with
the argument of
Mr
Stewart
with regard to the costs of the remaining exceptions not covered by
the notice of amendment.
Accordingly
I make an order in the following terms:-
1.
the first, second and third defendants
exception to the plaintiffs’ particulars of claim is upheld;
2.
the plaintiffs are given leave to deliver
such amended particulars of claim as they may be advised, within 30
days of the service
of this order upon them;
3.
the plaintiffs are ordered to pay the
first, second and third defendants’ costs of the exception.
___________________
Date
of Hearing : 17 March 2015
Date
of Judgment : 27 March 2015
Counsel
for Applicants : Adv. M Stewart
Instructed
by : Biccari Bollo Mariano Inc.
031 566
6769
(KNorhmore/sp/DD1071)
Counsel
for 1
st
, 2
nd
& 3
rd
Defendants:
Adv. P Kissoon-Singh
Instructed
by : Cliffe Dekker Hofmeyr Inc.
c/o Shepstone &
Wylie
031 575 7000
(Ref:
JVK/KLB/CLIF18219.17)0